1979 PLP 845 (CLC)

(ii) But whenever any such suit comes before a Court of appeal, reference or revision, if such Court considers that the said question has been wrongly decided to the detriment of the revenue, it shall require the party by whom such fee has been paid to pay so much additional fee as would have been payable had the question been rightly decided, and the provisions of section 10, paragraph (ii), shall apply." From these provisions it is abundantly clear that initially the question of, valuation is to be determined by the Court in which the suit is filed. The appellate Court can go into that question only after it has been decided by the trial Court and (when the matter comes up before it) the appellate Court feels that it has been wrongly decided.

6. Now, in the light of the provisions of section 12 of the Court Fees Act it is to be seen as to whether, in the present case, the trial Court had decided the question of valuation. There is no express order of the trial Court in this behalf. It has, however, been urged by the learned counsel for the appellants that the order of the trial Court relating to the registration of the suit amounted to a decision on the question of valuation. According to him, by allowing the registration of the suit, the learned Civil Judge had, by implication, held that it had been correctly valued. The authority cited by him in this regard is In re : Lakshmi Ammal (A I R 1926 Mad. 96).

7. In the case of Lakshmi Ammal the appellant purchased some property for Rs. 2,300 under a sale-deed executed by the defendant and paid Rs. 1,000 in cash and executed in favour of the defendant and his minor sons a mortgage deed for the balance of consideration for the sale. She brought a suit in the City Civil Court against the defendant alleging that the defendant had played a fraud on her by suppressing important facts and praying for a declaration that the sale-deed and the mortgage deed were invalid and for the return of the Rs. 1,00) paid by her and for Rs. 300 as damages. The City Civil Judge dismissed the plaintiff's suit and the plaintiff preferred an appeal to the High Court. She paid the court-fee on Rs. 1,300 being the amount claimed by her from the defendant. The Taxing Officer of the High Court held that the court-fee paid was insufficient and that the court-fee on Rs. 2,301 should he paid on the ground that the substantial relief asked for by the plaintiff was the cancellation of the sale-deed. The appellant paid the additional court-fee. The Taxing Officer further demanded the difference between the court-fee paid by her in the City Civil Court and the court-fee payable by her according to his view. The appellant's counsel (Yakil) objected to paying the said difference and thereupon a reference was made to the High Court.

8. It was contended by the learned counsel for the appellant in the cited case that there was no decision by the City Civil Judge, under section 12 of the Court Fees Act, as to the proper court-fee payable on the plaint and that only in case where there is a decision by the lower Court the appellate Court had power under clause (ii) of section 12 to require a party to pay the additional court-fee which the appellate Court may consider to be the proper fee payable on the plaint. In order to be certain as to the practice prevailing in the City Civil Court, the High Court called for a report from the City Civil Judge. The learned Civil Judge reported as follows "The principal Ministerial Officer attached to this Court, viz. the Sheristadar himself, personally receives all plaints and affixes the date stamp on them as soon as they are received. He then goes through the plaints and scrutinizes them carefully to ascertain whether they have been presented in time and whether they have been properly framed or stamped . It is only in cases where the Principal Ministerial Officer feels any doubt and puts up the cases for formal orders by the Judge that the Judge applies himself to the question and gives his personal decision. This is the uniform course of proceeding that has been adopted during my time and I understand during the time of my predecessors as well." In view of the said report their Lordships of the High Court (Devadoss and Wallace, JJ.), ruled as follows : - "We hold that when a Court receives a plaint, petition, or any other pleading and files it as properly stamped, its act amounts to a decision that the proper court-fee has been paid. If according to the practice prevailing in the Courts the Chief Ministerial Officer files a plaint, or a petition. or other pleading, as being properly stamp.-d or that proper court-fee has been paid, his act is an act of the Court within the meaning of section 12, clause (1).

9. I am afraid the view expressed in the case of Lakshmi Animal cannot be followed in the circumstances of the present case. In the case under report, the matter relating to the valuation of the suit was not taken to the High Court in relation to an interlocutory order as has been done in the instant case. The case of Lakshmi Animal had been finally decided by the trial Court and it was during the course of the appeal against the dismissal of the suit that the question of valuation of the suit had cropped up. Since the suit had been decided with the valuation as given in the plaint, the High Court had formed the view that according to the trial Court the valuation as fixed by the plaintiff was correct. It seems that in the cited case no objection was taken to the valuation of the suit by the defendant at the stage of trial. If that had been done there would have been an express order of this learned Civil Judge in that behalf but in the judgment of their Lordships there is no mention of such an order. If such an objection had been taken, the Court could have made an order contrary to the report of its Principal Ministerial Officer. This is evident from the following observations appearing in the main judgment recorded by Devadoss, J., while interpreting the words "shall be decided by the Course" used in section 12 of the Court Fees Act :- "This does not mean that an issue shall be raised and decided by the and Court. All that it means is that the Court, either the Presiding Officer the Ministerial Officer who is charged with that duty, has to determine what the court-fee is. Where the Chief Ministerial Officer's decision is demurred, the Judge or the Presiding Officer decides in open Court, after hearing the party concerned or his Pleader, what proper court-fee is."

10. Similar view was expressed by Wallace, J., who, while agreeing with Devadoss, J., made the following comments in regard to the provisions of section 12 :- "The wording of the section offers no difficulty since, in any case, the trying Court must decide the question of court-fee implicitly, before it can proceed to try the suit. If the Court is not satisfied that the plaint is properly stamped it must dismiss the suit unless the proper stamped-fee is paid; see Order VII, rule 11(c). If the question is not explicitly raised and the Court proceeds with the trial, the Court have implicitly decided that the stamp is sufficient. If the parties or the Stamping Officer specifically raised the point then the Court gives an explicit decision thereon. In either case, there is a decision of the Court; but while, when the parties have raised the point, the express decision of the Court will be final between them, the section permits the appellate Court suo motu to raise the point in the interests of the revenue."

11. The cumulative effect of these observations is that on the filing of a suit before the trial Court if the Ministerial Officer of the Court makes a report to the effect that the suit is correctly valued and no objection is taken thereto by the Presiding Officer or the defendant till the disposal of the suit, it will be presumed that the trial Court had decided the question of valuation in terms of the report of the Ministerial Officer and, on appeal, if the appellate Court feels that the decision so taken B was not correct, it can redetermine the valuation. But, if the Presiding Officer does not agree with the Ministerial Officer or, if he agrees, the valuation is objected to by the defendant, the explicit decision given by the Presiding Officer on that objection would be the decision of the trial Court regarding the valuation of the suit. In other words, after the report of the Ministerial Officer, when the Presiding Officer makes an express order, suo motu or on the objection of the defendant regarding the valuation of the suit, will be the decision of the Presiding Officer and not the report of the Ministerial Officer which will be regarded as the decision of the trial Court for the purpose of section 12 of the Court Fees Act.

12. What happened in the present case was that after the institution of the suit, on 28th June 1977, with the Senior Civil Judge, Lahore, it was entrusted to the aforesaid learned Civil Judge, Mr. Ikram-ul-Haq. As directed by the learned Senior Civil Judge, the suit came up before the learned Civil Judge on 29th June 1977 when the learned Civil Judge directed the office, to put up the case after scrutiny (Partal). On the same day, it was reported by his Reader that it was afresh case for injunction and that a court-fee stamp of Rs. 15 had been affixed thereon. The learned Civil Judge then ordered the registration of the suit and proceeded to hear the application for temporary injunction filed alongwith the suit. He passed an ad interim order restraining the petitioners from making construc tions over the suit land and interfering with the possession of the first respondent (plaintiff) on that land. The said order was eventually confirmed by the learned Civil Judge on 10th July 1977.

13. As for the main suit, it was directed by the trial Court on 29th June 1977 (the day when the suit was registered) that the defendants be summoned for 18th July 1977. In pursuance of the summonses issued to the appellants they filed their written statement, on 25th July 1977, in which they raised a number of preliminary objections, one of them being in respect of the valuation of the suit. The trial Court then adjourned the case for filing of replication. Further proceedings had yet to take place when the record was obtained by this Court. As a result, the trial Court could not proceed further with the main case. It can, therefore, be safely presumed that after getting the replication, the trial Court would frame an issue in regard to the valuation of the suit. That issue will be decided by the Court after hearing the parties and the decision of the trial Court thereon Would be the decision of the Court on the question of valuation for the purpose of section 12 of the Court Fees Act. This view of mine is supported by the fact that the appellants did not challenge the order of the trial Court regarding the registration of the case on the ground that it amounted to a decision on the question of valuation which, according to them, was not correct. It was only on the confirmation of the temporary injunction by order, dated the 10th July 1977, which was made after about fifteen days of the registration of the suit, that when they filed the present appeal against the said order and an objection was raised by the respondents that the appeal had not been filed before a proper forum, they came out with the plea that the question of valuation had been decided by the trial Court and its decision in this behalf was erroneous. It is also to be noted that if the trial Court had already decided the question of valuation on 29th June 1977, while registering the suit, there was no occasion for the appellants to object to the valuation of the suit by means of the written statement. Keeping all these circumstances in view, I hold that the question of valuation is yet to be decided by the trial Court. In this view of the matter, the case of Lakshmi Ammal relied upon by the learned counsel for the appellants is of no help to them.

14. The next question to be determined is whether this Court has jurisdiction to entertain the present appeal. According to provisions of section 18 of the West Pakistan Civil Courts Ordinance, 1962, at the time of the filing of the present appeal, the District Judge could hear appeals arising out of the suits of the value of Rs. 25,

000. The value of the suit as fixed by the first respondent was Rs. 1,

000. In view of this valuation, the present appeal should have been filed before the District Judge and not before this Court. The mere fact that the appellant had objected to the aforesaid valuation did not warrant the filing of appeal in this Court before the upholding of that objection by the learned Civil Judge.

15. This view is supported by the law laid down in the aforementioned cases of Sadar Din, Smt. Pyara and others and (Shah) Muhammad relied upon by the learned counsel for the respondents. In Sadar Din's case this Court had ruled as under :- "The important thing to be noted is `value of the original suit' occurring in section 18(1)(a). Value is defined in clause (h) of section 2 of the Ordnance as: `Value' used with reference to a suit means `the amount or value of the subject-matter of the suit'. It is manifest that the forum of appeal is to be decided according to the value of the suit. It means that irrespective of what may be the amount for which decree is passed, the appeal will lie in the Court according to the value of the suit. In most of the suits, the value for the purposes of court-fee and jurisdiction is determined on the basis of the claim in the suit or on the market value of the property. In certain cases like the suits for possession or pre-emption the value for the purposes of court-tee is fixed notionally on the basis of the Land Revenue or the net profits, and value of such suit for the purposes of jurisdiction is notionally so fixed under the rules framed under section 3 of the Suits Valuation Act." In the case of Sint. Pyara and others, the High Court of Allahabad said :- "It does not matter if the appellant is the defendant. Forum of the appeal does not depend upon whether the plaintiff is the appellant or the defendant. It gets fixed for both parties from the valuation placed on the suit by , the plaintiff. Regardless of whether it is off open to the defendant or not to question the valuation put by the plaintiff, he has no right to vary it when he files an appeal from a decree passed in the suit. He is bound to place the same valuation on the appeal as was placed on the suit. Even if he ignores the valuation of the suit and places his own valuation, the forum of appeal will be decided by the valuation of the suit. In Yudhisthir Singh's case 1962 All. L J 432 a Bench of this Court held at page 435 that whatever valuation is put on the petition will govern the forum of appeal. `In Bishu Nath Saran Singh v. Mt. Jugraji Kuar A I R 1933 Oudh 191 the same view was taken." In Shah Muhammad's case it was held that jurisdiction for an appeal from an order passed in execution proceedings depends on the value of the suit and not on that of the dispute immediately in concern.

16. What. emerges from the foregoing discussion is that this Court has no jurisdiction to hear the appeal in hand because in view of the value of the suit as fixed by the first respondent (plaintiff), it lay before the District Judge and not the High Court.

17. It was also submitted by the learned counsel for the appellants that if the preliminary objection of the respondents was sustained by this Court it may treat the present appeal as a revision and decide it accordingly. In this connection, he cited Municipal Committee, Bahawaipur v. Sh. Aziz Elahi (P L D 1970 S C 506). The relevant observations made by their Lordships of the Supreme Court in the above case read as follows :- "Even in cases where the order or a decision sought to be challenged does not amount to a decree, the question will arise as to whether the High Court will, in the exercise of its discretion under section 115 of the Code of Civil Procedure, favour interference if another remedy, which was open to a party, has not been pursued by him. The words used in section 115 are that the `High Court may call for the record' and, as such, it is not incumbent upon the High Court to call for the record in every case. As a general rule the principle to be followed in all such discretionary matters is that special and extraordinary powers ought not to be exercised in favour of an applicant who has been negligent in pursuing the normal remedies open to him. Thus where an appeal lay to some other Court and could have been filed if the applicant was diligent but he has not done so, then the High Court should not ordinarily entertain a revision even if the order or decision complained of does not amount to a decree. Similarly, where an aggrieved party could have brought a separate suit to challenge the order sought to be revised ,the High Court will not, as a rule, interfere in revision. Thus an order under Order XXI, rule 52 of the Code of Civil Procedure, determining the priority between the decree-holder and a third person or a decision under section 9 of the Specific Relief Act, which could have been challenged by a separate suit, will not ordinarily be interfered with in revision. This rule is not, however, an inflexible gone and it will, no doubt, depend upon the special circumstances of each case whether it will be followed or not. Normally, where the applicant has no other remedy left, the High Courts are inclined to take a liberal view, but where the case is one which does not clearly fall under the terms of section 115, no revision can be entertained in any event." As observed by their Lordships, only with a party that the revisional jurisdiction can be exercised in his favour. Since the appellants could pursue the remedy of appeal before the learned District Judge and there are no special circumstances warranting departure from the normal procedure I am not inclined to entertain this appeal as a revision.

18. As 1 have not of been able to assume jurisdiction in the present appeal, I would not like to comment on the merits of the case.

19. I, therefore, direct that the memorandum of appeal shall be returned to the appellants for presentation before the District Judge, Lahore. The appellants shall pay the costs of the respondents in respect of the proceedings held in this Court. S.Q Order accordingly.